When Is An Agreement Executory

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In a recent experiment with a client («Jane Doe»), she told me that after six months of collecting her deductible directly from her retirement accounts, her deductible was hurting and she didn`t know how to get out of the hole. To add salt to the wound, she personally guaranteed i) the lease of the commercial space; (ii) the franchise agreement; and the small business loan the company needed to get started. This is obviously a worse scenario for a business owner, especially if the business does not make a profit, because it is only a matter of time before the business is closed and the creditors come after the business owner. After an hour when I got an idea of her personal and business finances, I began to explain to Ms. Doe what her options were and how these executory contracts would be handled in the context of her bankruptcy. As a general rule, bankruptcy courts will allow the acceptance or rejection of a contract if they provide evidence that both practices are a good business decision. Assuming that most types of performance contracts can also be awarded to third parties by the DIP or agent in the circumstances covered by Section 365. Except for certain types of contracts, such as leases. B of non-residential property and leases for aircraft and leased parts, the DIP or agent may decide at any time, until a Chapter 11 plan is confirmed, to adopt or reject a Chapter 11 plan. However, any non-debtor who is a party may attempt to compel the DIP or the agent to accept or refuse the contract before confirmation, in which case the bankruptcy court must decide the appropriate duration for the decision. Pending a decision to resume or refuse, the agent or THE DIP is generally required to maintain the obligations due after the post-petition. C. A single handwriting may contain more than one contract for acceptance-refusal of p.

365. In re Plum Run Serv. Corp., 159 B.R. 496, 498 (Bankr. S.D. Ohio 1993); In re Village Rathskeller, 147 B.R. 665, 671 (Bankr. S.D.N.Y.

1992) (any provision of an accepted agreement is not enforceable against the debtor). State law determines whether the contract is divisible for acceptance and rejection. In re Downtown Props., Inc., 162 B.R. 244, 247 (Bankr. W.D. Mo. 1993); Plum Run Serv. Corp., 159 b.R. to 498-99; In re Independent Am. Real Estate, Inc., 146 B.R. 546, 550-52 (Bankr.

N.D. Tex. The question of whether there was a separate and different consideration and benefit for each «contract» determines whether a part of a single contract can be separated and applicable. In re Leslie Fay Co., Inc., 168 B.R. 294, 301 n.7 (Bankr. S.D.N.Y. 1994). The possibility of obligations under the option agreement distinguishes them from the standard contract. The court indicated that it must consider whether the option required another benefit from each party at the time the petition was filed. As a general rule, the answer is no, as the option taker has generally fulfilled his only real obligation under the pay option. After fully fulfilling its commitment, the option taker is literally not in a position to violate the agreement.

The only unfulfilled part of the option agreement is the requirement for the option giver to keep the option open during the option period. Therefore, the agreement cannot be a contract of execution, since the benefit is due to only one party. The creation of other obligations is left to the sole discretion of the option holder. See also, In re Robert L. Helms Constr. and Devel. Co, 139 F.3d 702, 705 (9. Cir.1998); In re America West Airlines, Inc., 179 B.R.

893, 896 (Bankr.D.Ariz.1995); and In re Giesing, 96 B.R. 229, 232 (Bankr.W.D.Mo.1989). The Court of Appeal confirmed that the non-debtor of a contract executed on the day of the petition cannot, by tender after the petition or the execution of his own obligations, «deprive the debtor of the opportunity to exercise his legal right to refuse the contract as an estate disadvantage.» The simple language of Section 365, the court explained, allows a DIP or agent to accept or refuse a performance contract «at any time prior to the confirmation of a plan.» Counterparts seeking to make a previous decision pointed out the



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